Evaluation of Whether The Awards Annulled at The Seat of Arbitration Should be Enforced in Other Jurisdictions in the Context of Juridical Theories of Arbitration
| Author | Marina Filina |
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Evaluation of whether the awards annulled
at the seat of arbitration should be enforced
in other jurisdictions in the context of
juridical theories of arbitration
Marina Filina
The Convention on the Recognition and
Enforcement of Foreign Arbitral Awards 1958
can be described as ‘the single most important
pillar on which the edifice of international
arbitration rests.1 However, Article V(1) of the
NYC also outlines grounds under which courts
‘may’ refuse such enforcement. The article will
focus on Art.V(1)(e). This provision has been
exposed to divergent interpretations by national
courts which will be analysed in the context of
juridical theories of arbitration. Indeed, as
recognised by Professor Lew, ‘the attitude of
national legal systems towards arbitration and
its award depends on the legal nature of
arbitration in such systems’.2
1 Gillis Wetter, ‘The Present Status Of The International Court Of
Arbitration Of The ICC: An Appraisal’ (1990) 1 American
Review of International Arbitration 93.
2 Emilia Onyema, Rethinking the Role of African National Courts in
Arbitration (Kluwer Law International 2018) 4.
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I. Introduction
‘The ultimate test of any arbitration proceeding is its ability
to render an award which, if necessary, will be recognized
and enforced in relevant national courts’.3 The Convention on
the Recognition and Enforcement of Foreign Arbitral Awards
1958 (NYC) has been described as ‘the single most important
pillar on which the edifice of international arbitration rests’
for establishing an international framework which allows to
enforce awards in its Member States.4 However, Article V(1)
of the NYC (Art.V(1)) also outlines grounds under which
courts ‘may’ refuse such enforcement.5 The article will focus
on Art.V(1)(e), which allows for an award that has been
annulled in the country of origin to not be enforced in the
‘secondary jurisdiction’.6 This provision has been exposed to
divergent interpretations by national courts ‘despite the
adherence of these’ to the NYC.7 Although attempts to
3 Gary Born, International Commercial Arbitration: Commentary and
Materials (2nd edn, Ardsley, NY: Transnational Publishers 2001)
102.
4 Wetter (n 1).
5 Convention on the Recognition and Enforcement of Foreign
Arbitral Awards (adopted on 10 June 1958, entered into force 7
June 1959) (NYC) art V(1).
6 Jan Paulsson, ‘Enforcing Arbitral Awards Notwithstanding
Local Standard Annulments’ (1998) 6(2) Asia Pacific Law
Review 21.
7 Rishabh Jogani, ‘The Role Of National Courts In The Post-
Arbitral Process: The Possible Issues With Enforcement Of A
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